Dietmar HarhoffDoes the Instrument of Opposition During the Patent Filing Process Need to Be Improved?

Dietmar Harhoff
Does the Instrument of Opposition During the Patent Filing Process Need to Be Improved?

Dietmar Harhoff is Director at the Max Planck Institute for Innovation and Competition in Munich where he heads the department of Innovation and Entrepreneurship Research. Furthermore, he is an Honorary Professor for Entrepreneurship and Innovation at the Ludwig Maximilian University Munich.
Harhoff’s research focuses on innovation research, entrepreneurship, intellectual property and industrial economics and has been published in a large number of renowned journals. He also serves as a scientific advisor for public and private organizations and chairs the Commission of Experts for Research and Innovation that has been appointed by the German Federal Government. Furthermore, he is an elected member of the German Academy of Science and Engineering (acatech), the German Academy of Sciences Leopoldina and the Bavarian Academy of Sciences (BAdW).

"The Max Planck Society is Germany's most successful research organization. Since its establishment in 1948, no fewer than 18 Nobel laureates have emerged from the ranks of its scientists, putting it on a par with the best and most prestigious research institutions worldwide. The more than 15,000 publications each year in internationally renowned scientific journals are proof of the outstanding research work conducted at Max Planck Institutes – and many of those articles are among the most-cited publications in the relevant field." (Source)

Institute

The Max Planck Institute for Innovation and Competition was founded in Munich in 1966 as the Institute for Foreign and International Patent, Copyright and Competition Law. During the following decades, it became instrumental in the development of the areas of law that it dealt with. In 2002, in conjunction with new appointments, its scope of research was extended to include core areas of antitrust law and tax law - hence, the change of the Institute’s name to the Max Planck Institute for Intellectual Property, Competition and Tax Law. After the establishment of an additional department for financial economics in 2008, this Institute was replaced, with effect from January 1, 2011, by the MPI for Intellectual Property and Competition Law and the MPI for Tax Law and Public Finance. Together with the MPI for Foreign and International Social Law, these two Institutes form the Munich-based Max Planck Campus for Legal and Economic Research. In 2013, the Max Planck Institute for Intellectual Property and Competition Law was expanded to include a new, economics-oriented department (Innovation and Entrepreneurship Research); in 2014 the Institute changed its name to Max Planck Institute for Innovation and Competition. (Source)

Map

Patents are a very useful tool for supporting innovations by setting incentives for companies to invest in research and developments. However, only those innovations should be protected by a patent that are truly inventive. Otherwise, patents might actually end up stifling innovations rather than supporting them. This happens in the case of patent thickets where there are overlapping patents that block each other. DIETMAR HARHOFF explains that this situation should be avoided by the mechanism of opposition: After the patent is granted by the patent examiner, third parties have the opportunity to oppose the examiner’s decision. As described in this video, the researchers used graph theory to analyze patent thickets involving three companies to uncover in which situations this instrument fails. Their findings indicate that, if a patent holder is embedded in such a thicket, they are less likely to challenge a patent application to avoid an escalation between the parties that might end up in court. Furthermore, if there is a large number of companies that could oppose a certain patent, the incentive for any of these companies to oppose is reduced as only one of them has to shoulder the costs of the process while all of them benefit.

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